Tanya Plibersek (Sydney, Australian Labor Party, Shadow Minister for Childcare) Share this | Hansard source

I would like to speak today on the Family Law Amendment (Shared Parental Responsibility) Bill 2005. But first I want to address some of the things that the previous speaker, the member for O’Connor, said. He mentioned the tragedy of murders and suicides in families post separation. Indeed, the most dangerous time for a woman is just after she has left a relationship. In many instances that applies to children as well. It is something that we as a parliament need to take very seriously. Every week or every couple of weeks we read in the paper about another tragedy. Yesterday I read in the paper about a tiny baby and his mother burnt to death in the family home, and the coroner is investigating that incident. There have been a number of incidents recently that I perhaps should not speak of in any detail because they are still being investigated.

To say that our automatic response to these tragedies has to be to change family law to make it easier for parents who in the end are able to act in this way towards their own children to have access to those children seems to me to absolutely defy logic. I understand that the member for O’Connor is talking about the frustrations that people experience post divorce, and I think those frustrations exist on both sides of a broken relationship, but to say that the solution to suicide and, in particular, to the murder of children is to make it easier for people to have access to those children really defies belief.

On a slightly lighter note, I would like to say that 47 years of marriage is a marvellous achievement. I commend the member for O’Connor, and I particularly commend Mrs Tuckey. I am sure that they have been 47 very interesting years.

The government has been tinkering with the family law system now for about a decade. Unfortunately, in my view there have been few real positive changes during this time. There has been a number of parliamentary inquiries and a number of government inquiries, particularly since the year 2000, that have responded to very strong feelings across the board in the Australian community about this issue. It is no wonder that these feelings are strong when you look at the shocking rates of divorce in the Australian community and the number of people who are affected, either directly through their own marriage breakdown or, as the member for O’Connor said, through witnessing the effect of the relationships of their children, friends, brothers or sisters.

This bill to amend the Family Law Act is an attempt to make improvements to family law. In the end I expect that we will support the legislation as it is before us. I think it is wise, at the end of the day, because there are some improvements in the bill. But with the amendment that our shadow Attorney-General has proposed this legislation could be a much better package. I really would urge the Attorney-General to give more detailed consideration to the amendment that the shadow Attorney-General has proposed, because I think that she has given a great deal of thought to this issue and that the proposal she has put before us is very sensible and addresses some of the very important issues that have been raised not just by members of parliament and expert groups such as the Family Law Council, the Family Court itself and the legal centres around the country but also by constituents that have contacted our offices and given us their views.

The measures that I support in the bill are the measures that encourage both parents to take more responsibility for their children. Of course in an ideal world we do not leave equal parenting until divorce. We want parents—mothers and fathers—to take responsibility for their children from day one and to have as equal a relationship with their children as possible from day one. I support any notion that says mothers and fathers are important when it comes to bringing up kids. I also support provisions that create and promote alternatives to the legal system.

I support the establishment of family relationship centres, although I am going to withhold my final decision on how well they are going to work until I see a bit more detail about what is proposed. I support any counselling, certainly after marriages break down—when it can help people get along and help them balance the competing demands of their children, property disputes and so on—but also, preferably, before marriages break down, when it can help people work out how to better communicate and how to balance the demands on them when it comes to their parenting responsibilities, their other caring roles and their work responsibilities. I think any one of us could benefit from a bit of professional advice from time to time about how to improve our relationships.

I do not support some of the other measures in the bill, and I want to speak a little bit about those. First of all, I want to talk about the criteria for the establishment of the family relationship centres. It is extraordinary, isn’t it, that with a committee of eight coalition backbenchers to oversee the development of the criteria you have got six marginal seat members out of those eight who—wow!—all, except one, received a family relationship centre in their electorate. I do not know who the dummy was that missed out. I do not know how you miss out in a circumstance where you are the one putting the list together. In a situation where you have got a select group of people working out where the family relationship centres go, with very little transparency about how the decision is made, I do not think that the public can really have faith that the centres are going to the areas that need them most. It certainly looks like the government is more interested in pork-barrelling than in parenting.

I am also concerned about the quality of the services that the new family relationship centres will deliver. The Attorney-General’s family relationship centre information paper is loaded with styling tips for centre decor but pretty light on the details about service quality. For example, it makes clear that the centres should have:

• a modern but not clinical setting, and
• homely decor with soft lighting and bright (not dingy) colours and comfortable furnishings.

I am always keen to get styling and interior design tips from the Attorney-General! But what I would appreciate even more is advice about how the quality control is going to work for family relationship centres, what sort of training staff will get in identifying and dealing with violence issues and how family relationship centres will deal with complaints—there is no complaints mechanism set out in the information paper. So a little bit less on the interior design and a little bit more on how the family relationship centres are going to work would be greatly appreciated.

I am also extremely worried about the change in the definition when it comes to violence. The member for O’Connor made light of this change. It is a very significant change, in fact. In the bill the Attorney-General seeks to amend the definition of ‘family violence’ from its current subjective definition to what is being called an ‘objective definition’. The new definition means that a victim of violence must prove that their fear is reasonable. That is why it is called an ‘objective test’. It is a very different definition to the definition that the states use when they are dealing with violence issues. The states’ definition is based on the behaviour of the perpetrator. I think that makes it much easier to be clear about a situation where a person might be fearing violence and why they would be fearing violence. We believe that the definition should remain unchanged. I note that the Attorney-General, in the exposure draft, did not want to amend the definition of ‘family violence’. Perhaps he was right in the first place and he should go back to his original instincts on this.

The Attorney-General’s own department and the Family Law Council have advised against changing the definition of ‘family violence’. I think the Attorney-General would be wise to listen to his advisers. The Family Court, the biggest service provider in this area, also advises against changing the definition. I believe it is dangerous and unnecessary to change this definition. The problem is that it will make it more difficult for real victims of violence to prove real violence.

I will give you an example of a constituent—let us call her ‘Jenny’—who is a client of a community legal centre in my electorate. Last year she finally left a long and very violent relationship. At the beginning of their relationship, her ex-husband was frequently violent but in the later years of their relationship the violence was less frequent. He was still very controlling and very abusive in other ways and did occasionally hit her but not as often as he did at the beginning of the relationship—in part, because Jenny, like most victims of violence, had become very adept at recognising the signs of what was coming and defusing the situation where she could. That meant that Jenny—likes tens if not hundreds of thousands of Australian women—walked around on eggshells, as would the kids. In any case, under the government’s proposed ‘objective’ definition of violence, it would be very hard for Jenny to prove the behaviour that she recognised as the early signs of a pattern of behaviour that was likely to escalate and lead to violence—for example, a look or the way her husband was speaking or something that she noticed in his pattern of behaviour that told her that, if things went along their usual path, she was in for it. Anyone looking at that from outside would find it very difficult to recognise what it was that Jenny found threatening in her husband’s behaviour. How could you prove without the history and the context, without knowing the detail of that relationship, that Jenny had a reasonable fear of violence?

The new proposed ‘objective’ definition will apply to all provisions of the Family Law Act that deal with family violence. Many of the provisions are procedural but very important. Where there is violence, matters can be intensively case managed or fast-tracked. Shuttle conferencing can be used. To lose those options when there is violence or a fear of violence would be a great loss. It is also important that the procedures be available to families where a parent has a fear of violence. They should be available where that parent feels a fear and should not be based on whether outsiders consider it reasonable for that parent to be fearful.

The effect of an ‘objective’ violence definition when it comes to procedures for compulsory mediation is also alarming. If Jenny cannot prove that her fear is reasonable, she may be forced to attend compulsory mediation with her ex-husband, whom she fears. However, mediation is based on two people who have equal bargaining power. If Jenny does not want to attend mediation—if she jacks up about the mediation, and the family relationship centre writes a negative report saying that she is uncooperative—it is not laid out anywhere in the legislation how she can object to that report and challenge the family relationship centre’s negative assessment of her behaviour without knowledge of the background to the relationship.

I am also strongly opposed to the provision that allows for cost penalties for ‘false’ accusations. We are a country of 20 million people. Inevitably, sometime, somewhere someone has made an accusation of violence that was false—of course that is not beyond the realms of possibility—but we do not know how great is the problem. The Attorney-General is having that investigated. It might be better to wait for the Australian Institute of Family Studies, which has just been commissioned to do this research by the Attorney-General, to come up with its results.

We do not know whether this is a big problem. I spoke to one of the representatives of the groups that claim that this is a problem. I asked him how he knew that false accusations have been made. He said, ‘Because the blokes in my group tell me they never did it.’ So, ‘I’m innocent, Governor.’ That is the only argument that people can put up against this suggestion of there being massive numbers of false accusations of violence in the community. What we do know is that there is a massive underreporting of violence, the reasons for which are varied. Unfortunately, many of the reasons apply to underreporting of sexual assault as well—shame, fear of reprisals, lack of family support and inappropriate police responses.

We know that, for years, women have not wanted to speak about violence in the home. They have seen it as being their fault. They have seen it as an issue for their family to deal with within the family. It is beyond me to imagine that, somehow, false accusations are a greater problem than this documented massive problem of underreporting. We know that family violence costs the Australian community $8 billion each year.

Australian empirical research strongly suggests that false allegations are rarely made. The member for O’Connor might like to look at research by Hume and by Brown, Frederico, Hewitt and Sheehan on false allegations. These allegations have rarely resulted in the denial of parental contact. There is research on that by Rhoades, Graycar and Harrison and by Rendell, Rathus and Lech. In my view it would be much better if the Attorney-General waited for the research he has commissioned in this area. He could even look at the research that has already been done and address the problem of underreporting of violence rather than just assuming that, because there are a few people in the community who raise it in emails that he gets, there is a massive problem of false allegations out there.

I am also worried about what parenting plans will mean for Australian families. It is fantastic when couples come to an arrangement between themselves about how they deal with the kids post separation, and most families do that. Divorce is never a happy time. If you were happy, you would stay together. It is a miserable time for most people. But research shows that 94 per cent of families who file papers in the Family Court actually settle their disputes by agreement. The vast majority of parents know that it is the kids who suffer in divorce and they want to avoid that at all costs.

Parents have been able to file consent orders or parenting plans with the Family Court without costly or drawn-out litigation, but the government does not like that approach. Instead, they want this approach of parenting plans which can be drawn up in family relationship centres and which will in fact trump previously made court orders.

You might have a case that has gone on for three weeks with a children’s advocate and lawyers at 50 paces and evidence produced about previous abuse or neglect—all the things that come out in a court case—and if someone gets bullied into going to a family relationship centre and writing down a parenting plan between the two of them at one of the tables at McDonalds, that plan should not have more effect than previous agreements made through the Family Court. However, the parenting plan, which would not be registered with the Family Court and which will have been made without legal advice in a room at a family relationship centre, trumps the previous orders made by the court after a three-day to three-week hearing. We do not know how skilled the family relationship centre mediator will be. I hope that there will be skilled people there, but there is no guarantee of that. I am very concerned about this.

Finally, with regard to the equal shared parenting responsibility, we want parents to have equal responsibility. But we need to put the best interests of the kids first, and equal responsibility does not automatically mean equal time. In the end, we will support this legislation because of some of the good measures in it, but I believe that if the Attorney-General took the advice of the shadow Attorney-General and listened to his own department, the Family Law Council of Australia and the Family Court, he would improve the legislation. (Time expired)

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